Elizabeth Warren's first law review article blasted an anti-busing court ruling

[BeyondGeography]

Washington(CNN) The most dramatic showdown during the first Democratic debate was between Sen. Kamala Harris and former Vice President Joe Biden over his decades-long opposition to desegregation busing. But on the sidelines of the re-litigated fight over busing -- and off the stage that second night -- was another candidate who waded into the busing debate in the 1970s on the opposite side of Biden: Massachusetts Sen. Elizabeth Warren.

In her first law review article, published in 1975 in the Rutgers Law Review and recently unearthed by CNN's KFile, Warren sharply criticized a Supreme Court ruling in the case Milliken v. Bradley, writing that it made it easier for school districts to stop busing students in northern cities.

...In the article, Warren predicted that de facto segregation -- segregation that occurs not because it was institutionalized by the government but because of social norms, prejudices and self-selection -- and de jure -- segregation that existed because of laws that mandated racial segregation -- had been silently "reaffirming" by the court and would take over American public schools.

The isolation of minorities in urban centers, Warren wrote, and a shrinking tax base to finance public education would lead to facilities that are inferior in "student-teacher ratios, and other educational advantages" for minority students. For Brown v. Board of Education to have meaning in northern urban centers, Warren said that "effectively separate schools, even if equal, and certainly if unequal, are condemned by the Constitution, regardless of the reason for the separation."

...Warren also seemed to recognize the significance of Milliken in her law review article. She argued that without proper oversight from the federal court system, she wrote, the burden of desegregation has fallen on to black communities.

"It has been black parents, children, and organizations committed to desegregation who have shouldered the major part of the burden...Clearly, the burden for enforcing the Brown right has been misplaced," Warren wrote.

More at https://www.google.com/amp/s/amp.cnn.com/cnn/2019/07/06/politics/elizabeth-warren-busing-desegregation-kfile/index.html

[JudyM]

1. Those last 2 paragraphs are important, and clear.

[DURHAM D]

2. Really?

"published in 1975 in the Rutgers Law Review and recently unearthed by CNN's"

Unearthed ??? Really???

It is a law review article right there for all to see. Not hidden. Easy/simple to find.

Drama is the goal.

Bite me.

[BeyondGeography]

10. I tested that theory

Search results for Elizabeth Warren at Rutgers Law Review online:

http://www.rutgerslawreview.com/?s=Elizabeth+Warren

[DURHAM D]

23. Not sure how that is relevant.

You may have missed my point. I was not dissing Senator Warren. I was dissing the media.

[BeckyDem]

3. Excellent.

Warren 2020

[Blue_true]

7. She stood up for right when that was not popular among Whites.

That is the definition of both political and personal courage. Contrast that to what Joe Biden was doing at that time.

I put Warren on the same tier as the great Florida Governor Reuben Askew, who integrated Florida schools over staunch White resistance.

[BeckyDem]

25. That is an important look back at history, we needed people with courage then

and we still need them today.

[Blue_true]

40. Exactly. nt

[zentrum]

11. +++++

[elleng]

4. 'without proper oversight from the federal court system,

she wrote, the burden of desegregation has fallen on to black communities.

"It has been black parents, children, and organizations committed to desegregation who have shouldered the major part of the burden...Clearly, the burden for enforcing the Brown right has been misplaced," Warren wrote.'

[hedda_foil]

5. Wow! Even considering that she had already worked as a special ed teacher before law school ...

I'm in awe of her reasoning in that Law Review article. She was right, of course ... at least in my opinion. A difficult passage to integration of schools and society was stopped in its path by that SCOTUS decision. Yes, it was opposed by fearful and/or angry parents. That was a given. But the federal government created the practice of redlining after WWII (probably to placate the Dixiecrats), to prevent low interest VA and FHA government mortgage loans from going to those areas. The goal was to frighten whites into the suburbs and to concentrate black Americans into circumscribed ghettos -- and they were even called that at the time.

Real estate agents warned white homeowners in those areas that they'd better sell quickly and move to the all-white suburbs or have their kids go to schools with n----r kids while the parents would lose money to falling property values. Meanwhile, banks followed the government's lead in refusing mortgage loans to the vast majority of black potential buyers.

Prevented from increasing their capital through home ownership, most African Americans were unable to profit from rising home prices as whites did. Schools became increasingly segregated as one of the inevitable consequences, and the Supreme Court decision has kept them that way. De jure segregation may have been outlawed but the ruling made de facto segregation the law of the land.

It would have been far, far better if the Court had ruled the other way and gotten it over with. By now, we would be a far, far better, fairer and more equal country.

[Kind of Blue]

20. +1000

[BeckyDem]

28. Awesome, hedda!

[littlemissmartypants]

43. Great post. ❤ nt

[Lonestarblue]

67. And today we have legal charter schools whose primary purpose is segregation.

They never claim that of course, but they choose locations carefully to create schools for mostly white kids. Warren has the courage of her convictions. I hope she is the nominee. She will eviscerate Trump on the debate stage.

[hedda_foil]

84. Thank all of you SO much! I really appreciate your kind words.

[Blue_true]

6. Her position shines like a beacon against what Joe was doing.

And she was a freaking republican then. But at that time, many republicans supported integration of society and schools.

[ucrdem]

9. Did she run on this position when she ran for senate in MA?

I think that would be very instructive to know.

[Blue_true]

12. My friends that live there says that she always ran on an equality platform.

She gets massive support from Blacks in her state.

[ucrdem]

14. The issue in the article is federally mandated busing. Has she run on that?

That would surprise me.

[Blue_true]

31. She ran on a total equality platform.

By definition, she is for whatever tools bring that about, be it busing, fair taxation and tax monies distribution, ect.

[ucrdem]

33. Great, show me her busing proposals, thanks in advance. nt

[Blue_true]

44. When people were running around talking about "forced busing", she saw busing

as a tool for effectively ending segregation of schools. And she took that position at a time of real personal and economic peril to her. Why would you expect her to embrace anything else today? Also, where is Joe Biden's proposal on busing? We know what he proposed along with segregationists.

[ucrdem]

45. What "peril"? She was building her resume. Joe on the other hand was legislating. nt

[Blue_true]

52. People were beaten, lost property and some were killed over supporting busing.

What she did took enormous courage, for a White person of that time to publicly call for what she proposed. You will not minimize her, she had courage.

[ucrdem]

54. At this point the battle had been fought and won. But it's a fine opinion and I respect it. nt

[Blue_true]

56. Really? The Supreme Court had gutted busing legistlation.

Moral democrats and republicans had to rewrite and pass legistlation. Joe Biden at that time was opposed to busing, so it is rational to guess that he opposed the new legistlation.

[ucrdem]

59. Not in 1975. But since then a series of decisions have made its application more limited, yes. nt

[Blue_true]

68. A Black guy in Boston was attacked by a White mob at that time.

Speared with an American flag pole, with the flag still on it, then he was beaten until someone rescued him from more serious injury.

In my native south, White people lost jobs and homes for publicly supporting school integration. Some Blacks ended up mysteriously dead, or shot dead by police.

[Kind of Blue]

76. Thank You, Blue_True! The violence and intimidation tactics are probably

the number 1 reasons AAs opposed busing instead of the ever bandied about "everybody was against it," like it was some Kumbaya moment.

[The Velveteen Ocelot]

70. Law review case comments were and are student writing exercises.

At some schools you don’t even get to have your name on them, and in any event soon after they are published they disappear into a memory hole, to be read only by your friends and family, who won’t understand any of it. If you’re really lucky your piece might get cited by someone if they can’t find anything else - student comments are pretty low in the hierarchy of legal authorities. Some of these pieces are very good, as Warren’s is, but I can assure you she was never in the slightest danger, personality or professionally, for having written it. Criticizing Milliken wasn’t controversial, even then.

[paleotn]

71. Is that what he was doing?...

I thought he was doing the wrong thing in order to stay elected. I mean, getting reelected is what it's all about...right? Right?

[ucrdem]

8. Joe's legislation didn't interfere with court-ordered busing.

That's one point. The other is that she was writing an article for a journal, not legislation that would affect constituents. I'd be very surprised if she's ever promoted this position in her Massachusetts senate runs.

[Blue_true]

15. Joe's legistlation attempted to outlaw the only known tool for ending school desegregation.

Since you opened the door, my friends (actually business associates) that live in Massachusetts say that she always ran on an equality platform and has enormous support among Blacks in her state.

[ucrdem]

16. No it really didn't, and busing is NOT the only tool for ending segregation.

Thanks though!

[treestar]

24. I was just thinking in my older age of more wisdom

could there not have been some other way that did not put the burden on the children?

Granted the children are most likely to get along together, in the sense that the little kids always play with each other without any racial issue - when they are so little they aren't aware of it, so maybe that is what they were thinking.

[ucrdem]

32. Biden thought that it was much better to integrate neighborhoods than schools

by ending redlining and zoning ordnances that made it hard for AA families to move into segregated areas. And he proposed lots of ways of achieving educational equality without sending students on buses to distant schools on the basis of their race.

Which based on outcomes I would have to say I agree with.

[treestar]

36. Yes redlining

That was a factor.

[Blue_true]

66. You like to say this. Show me the link to his proposals.

The only one on record is him working with segregationists to effectively end integration of schools. I am a southerner, I can promise you that segregationists WERE NOT for fair loans to Blacks so that Blacks could buy homes anywhere, I can acertain to that since I actually was a small boy at that time and witnessed what was going on.

[StarfishSaver]

82. Integrating neighborhood is a great idea - but it takes years and decades

And does nothing to integrate the schools in the meantime or to help the minority children trapped in segregated schools.

[Blue_true]

34. Governor Reuben Askew of Florida used tax redustribution and

new school construction to integrate schools, pretty successfully if my red county is used as a marker.

Joe Biden did not think that far ahead as he worked with segregationists. I am sorry, but that is part of history, and now we see that Warren opposed him even then, when it could have really cost her.

[ucrdem]

37. It didn't cost her anything as she wasn't in office. And Biden proposed similar alternatives. nt

[Blue_true]

47. It could have cost her job opportunities and more.

People were physically assaulted and had property destroyed for taking the very public position that she took. Many Whites that did not agree with segregationists shrunk from confronting them. So, you can't minimize her courage by saying that she did not hold office at the time.

Joe Biden's proposal at the time is a historical document. They buttressed segregationists and fortunately for society were defeated by elected democrats and republicans that had the moral clarity of Warren.

[ucrdem]

51. Democrats supported busing. That's why it existed. Academics moreso as they had nothing to lose.

If she'd written against desegregation it wouldn't would have been published. I applaud the article but in the 70s busing was conventional wisdom.

[Blue_true]

55. Democrats were very much split on busing.

At that time, the party still had souther segregationists in the party, although the south was rapidly becoming a republican bastion.

It took simple, heartfelt courage for Warren to do what she did at that difficult time, you can't minimize that.

Busing was the law because some democrats and republicans wrote and passed legistlation that overcame the efforts of the Supreme Court, Joe Biden and segregationists.

[Igel]

80. This goes directly back to the Harris/Biden split at the debate.

Harris left listeners (because of her opposition to Biden) with the only possible inference. He was against federal/court-ordered busing. She benefitted from the busing he obviously was against, therefore her district was subject to court-ordered busing.

Her district voted to have in-district, district-mandated, busing. Not federally mandated by federal law or by federal courts.

Harris was bused. She did not benefit from what SCOTUS decided against. SCOTUS had nothing to say about the program she was placed into.

The only inference from that is that it was *not* the "only known tool for ending school desegregation" that SCOTUS banned.

[crazytown]

13. So this the Republican 'Elizabeth Warren' ?

[Blue_true]

18. Yep, she was a republican at that time. But she refused to toe the line for segregationists.

This information is REALLY going to help her standing with Blacks, IMO. An upward bound White standing up for racial fairness and inclusion when that was not a popular thing to do among Whites.

[crazytown]

22. It helps her standing with me.

I've read countless times Warren had a road to Damascus conversion towards social justice when she started investigating real world bankruptcies in the '90s.

[Blue_true]

38. Looks like social justice was important to her almost a decade

earlier than her leaving the Republican Party. All of this should help her with Blacks, they will see her as a ally even when the chips are down, IMO.

[Kind of Blue]

48. And once upon a time, a politician didn't have to change parties to

demonstrate who they stood for.

We had a bad-ass Republican as my Representative while coming up in Maryland. Her name is Connie Morella. She's 88 years old. Thinking about it now, she became known as a RINO.

Although a Republican in an area that had become heavily Democratic, she proved highly popular among her constituents and won re-election seven times, serving until 2002. https://en.wikipedia.org/wiki/Connie_Morella

Personally, I'll never forget her kindness to my family. Once when one of my sisters ran into financial aid problems with a college trying to cheat her. We called Morella's office and someone got back to us the NEXT Day! saying they'd already contacted the school that all of a sudden couldn't find a problem. Morella's assistant said their office was expecting a confirmation letter that we got about a week from the assistant.

Years later, though only 62, we were trying to get my late blind uncle into an assisted living facility. It was an old folks home but part of their admissions policy was not just age but also for younger people with disabilities. It was basically an all white apartment building and we knew what the deal was. Called up Rep. Morella's office and problem solved. Uncle lived his remaining years independently without feeling like he was a burden on the family, which he was not.

Funny, she was born and raised in Massachusetts as well and from a family of democrats. She truly was a RINO, only changing parties when she married a republican but never changed her principles. I just love her and could go on and on about her career and what she did for people.

[StarfishSaver]

83. Ed Brooke was a Republican who fought Biden's anti-busing legislation

Last edited Sat Jul 6, 2019, 05:28 PM - Edit history (2)

[Kind of Blue]

85. Yes, indeed! And Rep. Brooke called one of Biden's amendments, "the greatest symbolic defeat

for civil rights since 1964." That freakin' chokes me up.

[treestar]

17. I'm not convinced to vote for any candidate

because of this issue. We are letting ourselves be distracted to an absurd degree.

[Blue_true]

21. Look, I respect you. But in my eyes, the choices that a person made during that time reflect

on their character. It was far, far easier for a White to virulently oppose busing than it was for one to give a rational argument on why it was needed.

[BeyondGeography]

42. Warren takes some crap on this board for having been a Republican

Deflating that point was my main motivation for posting this. Plus the clarity and quality of her reasoning.

[Kind of Blue]

19. This what I love about Sen. Warren, she understands a problem

inside and out, doesn't let it drop to fester and grow, and offers solutions.

Erika K. Wilson, a professor of public policy at the University of North Carolina School of Law, said that Warren's predictions for what would occur in the American education system largely came true and that her view was closely aligned with Justice Thurgood Marshall, who wrote a dissenting opinion in Milliken. America's school systems would become "irreparably segregated," said Wilson.

Warren, noted Wilson, might have been out of step with her contemporaries at the time, and particularly "out of step" with white Americans who were "tired" of the decades-long battle to integrate public schools.

"If the Court cannot or will not develop a judicial remedy for urban school segregation, then Congress must. Equal educational opportunity requires the combined efforts of the judiciary, the legislative branch, and the administrative departments of the executive branch," Warren concluded."

[Blue_true]

26. The Chump thinks that if she is our nominee, that he will dismiss her as Pocahontas

and call it a day. What he does not know yet is that he will get gutted like a Cod by her. "Nevertheless, she persisted".

[Kind of Blue]

86. And I'm hoping he'll be so mired and gutted by the investigations by the time she is our nominee.

[SunSeeker]

29. She's always the smartest person in the room. nt

[Kind of Blue]

87. Without a doubt!

[crazytown]

30. 'Congress must act'

This 'Republican Elizabeth Warren' has a lot in common with Democratic Senator Elizabeth Warren.

[Kind of Blue]

88. She's always been true to the 8 principles of good governance.

[SunSeeker]

27. K & R

[Honeycombe8]

35. I don't think we should bus children, unless their parents are bused first.

We should bus adults around first. Businesses aren't fully integrated. Maybe we should start requiring the busing of white adults to be dropped off to work at black-owned businesses, and bus minority workers to work at white businesses. We should then require politicians to be bused around to areas that are majority the opposite of the race that each politician is. Let's bus Massachusetts politicians to minority areas, to spend full days there politicking, fund raising, eating, working, however they spend their days. Then bus them back every evening in an hour (or 1 1/2 hr) long ride back to their Massachusetts neighborhoods, or to Washington D.C.

We need to do this in all the states, overseen by a federal program.

If that works well, we can then force the busing of their children. But I don't think we should force busing of children, unless the adults experience it first.

Hey, this sounds like a winning issue for the Democrats! I'm sure the voters will run to the polls to vote for a federal mandate of forced busing!

[WA-03 Democrat]

39. Grandma, tell me about busing?

This is not an issue.
Busing was tried and it failed. Most all agree that it wasn’t the best idea.

Healthcare
Jobs
Income inequality
Climate Change
Russia
Civil and Voting Rights
Repairing international relations
US right/white wing extremism

These are the issues. What anyone said about busing decades ago is a Russian red canard.

[KPN]

53. That's your perspective and you are welcome to it. But it's only yours and does not in the least

invalidate anyone else's. No canard if it's important to a particular voter. While busing may not be a key issue today, whether about busing or not, every candidate's past is relevant and a fair consideration in selecting who one will favor with their primary vote.

That's my perspective. I trust you will respect that.

[WA-03 Democrat]

58. For sure!

I am for who will be the Democratic to defeat Trumpkins

[Blue_true]

64. Past decisions when a person had a choice defined their character.

That is why Warren's stand then is important. Some people are trying to minimize it by saying that she was not in elected office, or that her stand was a comment in a newspaper. So be it, their view is their own, but it misses the point, she identified herself and opened herself up to career and physical peril because of her stand.

[PatrickforO]

72. Not really. Our candidates aside, because I'm not intending a stab

at Biden here, because I understand the politics of that time. I lived them, after all. But I do want to point out something.

I want to tell you a short story of how bad policy choices build on each other to create very serious problems.

The problem:
Colorado has a serious and growing imbalance in our labor force that is hurting businesses who rely on highly educated, highly skilled workers. Educational attainment for black and Hispanic kids is significantly below that of white kids and Asian kids, but demographically they will be 48% of our labor force by 2050.

Denver Public Schools was forced to bus in 1973, and there was a massive white flight to the suburbs (my family included).

Bad policy choice #1:
Denver Public Schools stopped busing in 1995.

Bad policy choices #2 and #3:
In 1991, two Amendments to the Colorado Constitution were passed: the Taxpayer Bill of Rights (TABOR) and the Gallagher Amendment holding the property tax ratio steady between businesses and residences.

OK, so let's see how these three bad policy choices played out on the ground.

Denver schools went back to de facto segregation when they stopped bussing - it was like a stretched rubber band flopping back into place. Because of 'white flight' the property tax base went down for inner city schools, but because of TABOR and Gallagher, the state legislature was powerless to stop it.

First, greater metro Denver grew and grew and grew, yet the ratio of property tax that comes from residential real estate has been held to artificially low levels because of the Gallagher Amendment. This, coupled with TABOR, has had a double whammy on inner city school funding.

Under TABOR, there has to be a plebiscite to raise taxes. Our state legislators, whom we elect to represent our interests, do not have the power to raise taxes, even when it IS in our best interests to do so. Thus, Colorado has steadily dropped in the amount of per pupil operating revenue. But it really IS a double whammy, because the low property tax revenue is holding down local school funding below the levels needed, and the state is forced to cut other budgets, like higher ed and transportation, to make up for the shortfall.

The result: Colorado K12 schools are now 38th in the nation on per pupil K-12 spending. Inner city schools get even less revenue because of the Gallagher Amendment, and the state budget is unsustainable with TABOR.

So, in Colorado the decision to make busing voluntary was problematic and, with TABOR and Gallagher, is slowly starving inner city schools, which now have graduation rates between 60% and 65%. This leaks into the postsecondary realm, where these mostly minority kids are graduating at low rates and end up not going to college or getting any other postsecondary training.

It is ALWAYS about money - the rich taking more and poor having less.

The other issue with the view that busing should be a voluntary state thing, rather than be mandated by the federal government is this. States like Alabama, Georgia, Mississippi and others in the Deep South simply won't do it. Remember 'all deliberate speed?'

Sociologically, the more different people are kept apart, the easier it is for guys like the Koch Brothers and other right wingers to use their think-tanks like ALEC to barrage states with legislation and ballot initiatives that further these bad policy decisions and cause new ones.

We all know intuitively that it is much easier to get white people to hate black people or Hispanics if we haven't been around them so we can get to know them. Physical separateness plays right into the hands of the corporate-funded right wing, and it has been a wildly successful strategy for them, because it has allowed them to steadily drain the treasury and transfer more and more wealth to fewer and fewer people, which has been the objective all along.

We see the fruits of this with the awful and criminal concentration camps in which we're imprisoning immigrants under appalling conditions. About a third of the people in this nation would happily go further and kill them, because the right-wing has ginned up so much fear and hatred toward them amongst working class whites.

This is why we need to roll over these cretins at the polls in 2020, force them back under their slimy rocks, and spend probably the next decade or two cleaning up the horrible mess they've created. I'm supporting Warren because she is striking at the root cause of the problem with her 'Accountable Capitalism Act' introduced in August 2018. It won't pass....for now. But, when it does pass and is signed into law, we can begin to heal.

As to Biden, I'll support him, too, should he win the Democratic nomination, but here's my question about both he and Bernie - and it is a fair one: You both served in Congress for decades, and things are now a lot worse than they were when you both began your careers. Why should we believe things will get better with you as president?

[KPN]

75. Great post. Thank you for taking the time to share your

obviously attentive perspective and thoughtful views.

[loyalsister]

89. +++

Thanks for laying that out so thoroughly.

[PatrickforO]

41. Another great reason to support her in the primary!

Which I am. She is very, very solid on policy.

[littlemissmartypants]

46. Kicked and recommended. ❤ nt

[SouthernProgressive]

49. When the dust settles...

Warren will be the undisputed winner of all this.

[Blue_true]

60. I tend to agree. This really helps her big. nt

[ucrdem]

61. She wasn't in office. Now, when she runs on bringing back busing to Boston, I'll agree with you!

[SouthernProgressive]

65. She doesn't need to run on it.

Just get this out to the public and never talk about it again.

[crazytown]

79. 'when she runs on bringing back busing to Boston'

it will be time to fund a primary centered on incapacity

[The Velveteen Ocelot]

50. It's a case comment, not an article. Law reviews make a distinction.

A case comment or note (sometimes defined slightly differently by different law schools) is a student work, usually written during the student's second year, analyzing a particular case or other development in the law. An article, in law review jargon, is a longer piece written by an outside contributor, usually a legal scholar, practitioner or judge. By pointing this out I don't mean in any respect to diminish this piece; it's very good. But criticizing Milliken v. Bradley wasn't a very heavy lift; the court held (5-4) that the federal courts didn't have the authority to desegregate the Detroit schools by requiring interdistrict busing. But, as the dissenters pointed out, Brown v. Board of Education required school systems to desegregate - but desegregating the Detroit school systems was impossible without interdistrict busing because almost all the kids in the Detroit schools were black. So without interdistrict busing, how were they to comply with Brown? Milliken was definitely one of the court's less admirable cases.

But the bigger picture here is that by purporting to compare the relative positions of Biden and Warren in the nineteen-fucking-seventies, is anyone suggesting that Biden's opposition to federal legislation mandating busing to desegregate schools (which the Milliken case would have made much more difficult in any event) is somehow the ideological opposite of Warren's criticism of Milliken, or, worse, that Biden is racist (which Kamala Harris specifically said he is not)? I am not sure what useful purpose is served by rehashing an issue that was controversial 40 years ago.

[ucrdem]

57. Thanks, this is helpful

[NYMinute]

62. This is extremely important

Since busing in the 1970s is what is paramount in this election and all voters will be voting based upon who said what and did what during busing.

[bluewater]

63. K&R

[dlk]

69. Warren's Record Demonstrates Her Long-Term Commitment to Democratic Values

Warren has spent her entire career fighting for the middle class, working families & people of color. She’s the real deal.

[stuffmatters]

78. Exactly. An early example of the consistency & clarity of Warren's "Fair Shake" ideology.

[SCVDem]

73. Is busing a 2020 problem?

I can think of many issues which are of more import.

More Biden bashing over old history.

Don't forget what our country's demographics are today. Whites will soon be the minority.

Will we bus them?

A rising tide lifts all boats. Let's fix income inequality.

[pnwmom]

74. A few states, Washington among them, have dealt with the disparity in resources

by making the state responsible for most education costs, rather than the individual school districts.

The reason poor children in most places get the worst schools is they lack the financial resources to have better ones, and they don't have the real estate tax base to afford what richer cities can afford.

[democratisphere]

77. Still on this crap?

Democratic diversions will not win elections.

[StarfishSaver]

81. Elizabeth Warren's been woke for years

This is an excellent, well written and thoughtful article.

It's also helps to provide much-needed perspective of those times and issues.